08. Evidence Act 118-167

Delhi Law Academy

                                                             INDIAN     EVIDENCE     ACT

 CHAPTER    IX         WITNESSES

Section 118                 Who may testify

  • All persons shall be competent to testify
  • unless Court considers that they are prevented
    • from understanding the question put to them or
    • from giving rational answers to those questions
      • by tender years, extreme old age, disease, whether of body or mind
      • or any other cause of the same kind

Explanation 

  • A lunatic is not incompetent to testify
  • unless he is prevented by his lunacy from
    • understanding the questions put to him and
    • giving rational answers to them

 

Section 119                 Dumb witnesses

  • A witness who is unable to speak
    • may give his evidence in any other manner
    • in which he can make it intelligible, as by writing or by signs
  • but such writing must be written and the signs made in open Court
  • Evidence so given
    • shall be deemed to be oral evidence

New Provision

  • Where the witness is unable to communicate verbally:
    • Court shall take assistance of an interpreter or a special educator in recording the statement
    • Such statement shall be video graphed
[Inserted by the Criminal Laws Amendment Act 2013]

 

Section 120                Parties to civil suit, and their wives or husbands

  • In all civil proceedings
    • parties to the suit
    • and husband or wife of any party to the suit
    • shall be competent witnesses
  • In criminal proceedings against any person
    • husband or wife of such person
    • shall be a competent witness

 

Section 122                Communications during marriage

  • No person who is or has been married shall be compelled
    • to disclose any communication made to him during marriage
    • by any person to whom he is or has been married
  • nor shall he be permitted to disclose any such communication
  • unless the person who made it consents
  • except
    • in suits between married persons or
    • proceedings in which one married person is prosecuted for any crime committed against the other

 

Section 123                Evidence as to affairs of State

  • No one shall be permitted to give evidence
    • derived from unpublished official records relating to affairs of State
  • except
    • with permission of the head of the department concerned
    • who shall give or withhold such permission as he thinks fit

 

Section 124                Official communications

  • No public officer shall be compelled
    • to disclose communications made to him in official confidence
    • when he considers that public interests would suffer by the disclosure

 

Section 125                Information as to commission of offences

  • No Magistrate or Police Officer shall be compelled
    • to say whence he got any information as to commission of any offence
  • and no Revenue Officer shall be compelled
    • to say whence he got any information as to commission of any offence against public revenue

 

Section 126                Professional communication

  • No attorney, pleader or vakil shall at any time be permitted
    • unless with his client’s express consent
  • to disclose any communication made to him
    • in the course and for the purpose of his employment
    • by or on behalf of his client or
  • to state the contents or condition of any document
    • with which he has become acquainted
    • in the course and for the purpose of his professional employment or
  • to disclose any advice given by him to his client
    • in the course and for the purpose of such employment

 

  • Nothing in this section shall protect from disclosure

(1)

  • Any such communication
    • made in furtherance of any illegal purpose

(2)

  • Any fact observed by any pleader, attorney or vakil in the course of his employment
    • showing that any crime or fraud has been committed
    • since the commencement of his employment
  • It is immaterial whether attention of such pleader, attorney or vakil
    • was or was not directed to such fact by or on behalf of his client

 

Explanation 

  • The obligation stated in this section continues
    • after the employment has ceased

Illustration (a)

  • A, a client says to B, an attorney
    • “I have committed forgery and I wish you to defend me”
  • As defence of a man known to be guilty
    • is not a criminal purpose
    • this communication is protected from disclosure

Illustration (b)

  • A client, says to an attorney
    • “I wish to obtain possession of property by the use of forged deed on which I request you to sue”
  • This communication
    • being made in furtherance of a criminal purpose
    • is not protected from disclosure

Illustration (c)

  • A, being charged with embezzlement
    • retains B, an attorney, ” to defend him
  • In the course of proceedings B observes that
    • an entry has been made in A’s account book
      • charging A with the sum said to have been embezzled
    • which entry was not in the book at the commencement of his employment
  • This being a fact observed by B in the course of his employment
    • showing that a fraud has been committed since the commencement of proceedings
    • it is not protected from disclosure

 

Section 133                Accomplice

  • An accomplice shall be a competent witness
    • against an accused person
  • A conviction is not illegal
    • merely because it proceeds upon the uncorroborated testimony of an accomplice

 

Section 134                Number of witnesses

  • No particular number of witnesses
    • shall in any case be required for proof of any fact

                                               

 

CHAPTER    X                     EXAMINATION   OF   WITNESSES

Section 135                 Order of production and examination of witnesses

  • The order in which witnesses are produced and examined
    • shall be regulated by the law and practice
    • relating to civil and criminal procedure respectively
  • and, in absence of any such law
    • by the discretion of Court

 

Section 137                Examination in chief

  • Examination of a witness by the party who calls him
    • shall be called his examination in-chief
  • Examination of a witness by the adverse party
    • shall be called his cross-examination
  • Examination of a witness, subsequent to cross-examination, by the party who called him
    • shall be called his re-examination

 

Section 138                Order of examinations

  • Witnesses shall be first
    • examined-in-chief
  • then, if the adverse party so desires
    • cross-examined
  • then, if the party calling him so desires
    • re-examined
  • Examination and cross-examination must relate to relevant facts
    • but cross-examination need not be confined
    • to facts to which the witness testified on his examination-in-Chief

 

Section 139                person called to produce a document

  • A person summoned to produce a document
    • does not become a witness by the mere fact that he produces it
    • and cannot be cross examined
    • unless and until he is called as a witness

 

Section 141                Leading questions

  • Any question suggesting the answer
    • which the person putting it wishes or expects to receive
    • is called a leading question

 

Section 142                When they must not be asked

  • Leading questions must not be asked
    • in an examination-in-chief or in a re-examination
      • if objected to by the adverse party
    • except with permission of Court
  • Court shall permit leading questions as to matters
    • which are introductory or undisputed
    • or which have been already sufficiently proved

 

Section 143                When they may be asked

  • Leading questions may be asked
    • in cross- examination

 

Section 145                Cross-examination as to previous Statements

  • A witness may be cross-examined
    • as to previous statements made by him in writing or reduced into writing
    • without such writing being shown to him or being proved
  • but, if it is intended to contradict him by the writing
    • his attention must, before the writing can be proved
    • be called to those parts of it which are to be used for contradicting him

 

 Section 146                Questions lawful in cross-examination

  • When a witness is cross-examined
  • he may be asked any questions which tend
    • to test his veracity
    • to discover who he is and what is his position in life or
    • to shake his credit by injuring his character
  • although answer to such questions
    • might tend to criminate him
    • might expose him to a penalty or forfeiture

 

New Provision

  • In a prosecution u/s 376, 376A, 376AB, 376B, 376C, 376D, 376DA, 376DB or 376E of IPC or for such attempt
  • where the question of consent is an issue
    • it shall not be permissible
      • to adduce evidence or
      • to put questions in the cross-examination of the victim
      • as to general immoral character or previous sexual experience of victim with any person
    • for proving such consent or quality of consent
[Inserted by the Criminal Laws Amendment Act 2013 and further extended by the Criminal Laws Amendment Act 2018]

 

Section 154                Question by party to his own witness

  • Court may, in its discretion, permit the person who calls a witness
    • to put any questions to him
    • which might be put in cross-examination by the adverse party

 

Section 155                Impeaching credit of witness

  • Credit of a witness may be impeached in the following ways
    • by the adverse party or
    • with consent of Court, by the party who calls him:

(1)

  • by evidence of persons who testify that
    • they, from their knowledge of witness, believe him to be unworthy of credit

(2)

  • by proof that the witness
    • has been bribed or
    • has received any other corrupt inducement to give his evidence

(3)

  • by proof of former statements
    • inconsistent with any part of his evidence which is liable to be contradicted

(4)

  • when a man is prosecuted for rape or an attempt to ravish:
  • it may be shown that
    • the prosecutrix was of generally immoral character

 

Explanation

  • A witness declaring another witness to be unworthy of credit
    • may not, upon his examination-in-chief, give reasons for his belief
  • but he may be asked his reasons in cross-examination
    • and the answers which he gives cannot be contradicted
    • though, if they are false, he may afterwards be charged with giving false evidence

 

Illustration (a)

  • A sues B for the price of goods sold and delivered to B
  • C says that he delivered the goods to B
  • Evidence is offered to show that
    • on a previous occasion he said that he had delivered goods to B
  • The evidence is admissible

 

Section 156                Questions tending to corroborate, admissible

  • When a witness whom it is intended to corroborate gives evidence of a relevant fact
    • he may be questioned as to any other circumstances
      • which he observed at the time or place at which such relevant fact occurred
    • if Court is of opinion that such circumstances, if proved
      • would corroborate testimony of witness as to relevant fact which he testifies

Illustration

  • A, an accomplice, gives an account of a robbery in which he took part
    • He describes various incidents unconnected with robbery
    • which occurred on his way to and from the place where it was committed
  • Independent evidence of these facts may be given
    • in order to corroborate his evidence as to the robbery itself

 

 Section 157                Former statements to corroborate later testimony

  • In order to corroborate the testimony of a witness
    • any former statement made by such witness relating to the same fact
      • at or about the time when the fact took place or
      • before any authority legally component to investigate the fact
    • may be proved

 

Section 162                Productions of documents

  • A witness summoned to produce a document
    • shall, if it is in his possession or power, bring it to Court
    • notwithstanding any objection which there may be to its production or to its admissibility
  • Validity of any such objection shall be decided by Court
  • Court may
    • inspect the document, unless it refers to matters of State or
    • take other evidence
      • to enable it to determine on its admissibility

 

Section 163                 Giving, as evidence, of document called for

  • When a party calls for a document
    • which he has given the other party notice to produce
  • and such document is produced and inspected
    • by the party calling for its production
  • he is bound to give it as evidence
    • if the party producing it requires him to do so

 

Section 164                Using of document production of which was refused on notice

  • When a party refuses to produce a document
    • which he has had notice to produce
  • he cannot afterwards use the document as evidence
    • without consent of the other party or order of Court

 

Illustration (a)

  • A sues B on an agreement and gives B notice to produce it
  • At the trial A calls for the document and B refuses to produce it
  • A gives secondary evidence of its contents
  • B seeks to produce documents itself
    • to contradict secondary evidence given by A or
    • in order to show that the agreement is not stamped
  • He cannot do so

 

Section 165                Judge’s power to put questions or order production

  • The Judge may in order to discover or to obtain proper proof of relevant facts
    • ask any question he pleases, in any form, at any time,
      • of any witness or of the parties
      • about any fact relevant of irrelevant and
    • may order production of any document or thing
  • Neither party shall be entitled to make any objection to any such question or order
  • Provided that the judgment must be based upon facts
    • declared by this Act to be relevant, and duly proved

                       

 

 

CHAPTER XI               IMPROPER   ADMISSION   AND   REJECTION   OF   EVIDENCE

Section 167                 No new trial for improper admission or rejection or evidence

  • Improper admission or rejection of evidence shall not be a ground
    • for a new trial or reversal of any decision
  • if it shall appear to court
    • that independently of the evidence objected to and admitted
      • there was sufficient evidence to justify the decision or
    • that if rejected evidence had been received
      • it ought not to have varied the decision